TABLE OF CONTENTS I. INTRODUCTION 959 II. "FUNCTIONAL MEMBERSHIP" IN THE ARMED FORCES 961 OF A PARTY III. CIVILIAN SCIENTISTS AND WEAPON SPECIALISTS 967 AND DIRECT PARTICIPATION IN HOSTILITIES IV. CERTAIN FINANCIAL FUNCTIONS AND DIRECT 971 PARTICIPATION IN HOSTILITIES V. CONCLUDING REMARKS 977 I. INTRODUCTION
Armed confrontations between states and non-state actors have received greater profile in recent years, regenerating debates over who may be targeted during hostilities. Questions relating to membership in the armed forces of non-state actors and the participation of civilians in hostilities have been given new life as the interpretation and application of the law of armed conflict (LOAC) are reassessed in light of the realities of conflicts such as those in Syria, Iraq, Lebanon, Yemen, and Gaza.
The twenty-first century has already produced a significant volume of perspectives on these questions. National and international courts have considered them in several cases, with the 2006 Israeli Supreme Court case Public Committee Against Torture in Israel v. Government of Israel (Targeted Killings) capturing a particularly prominent place in this discussion. (1) Academic publications have likewise dealt with this issue, many of them following the discussion encouraged by the International Committee of the Red Cross (ICRC) Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (ICRC Interpretive Guidance). (2) Of most importance, however, are the views expressed by states in various publications, usually in their military manuals: Canada (2001), (3) the United Kingdom (2004), (4) Australia (2006), (5) Mexico (2009), (6) Colombia (2009), (7) France (2012), (8) Germany (2013), (9) Norway (2013), (10) Israel (2015), (11) and the United States (2015). (12)
In this brief Article, I shall focus on a few specific issues that, in my mind, have particular relevance for contemporary and future armed conflicts, and with respect to which the debate is still ongoing: (a) the notion of "functional membership" in the armed forces of a non-state actor; (b) whether civilians employed in research and development projects qualify as direct participants in hostilities; and (c) whether civilians engaged in certain financial activities qualify as direct participants in hostilities.
"FUNCTIONAL MEMBERSHIP" IN THE ARMED FORCES OF A PARTY
Hostilities are normally waged between the armed forces of the parties to an armed conflict, whether they are states or non-state actors (in the latter case, the armed forces are often called "organized armed groups"). (13)
Under the traditional rules of LOAC, members of armed forces are lawful targets of attack. (14) When an armed conflict occurs between states, determining membership is regularly based on the premise that individuals in a state's armed forces wear uniforms and display fixed emblems. Accordingly, when a determination establishes that an individual is wearing a military's uniform, or that the individual signed up for the military, that individual may be targeted without further investigation. (15) In such a scenario, it does not even matter what the individual's exact role in the armed forces is, since there is no requirement for the individual to actually engage in combat to be a lawful object of attack. (16)
Now, the ICRC Interpretive Guidance rejects the possibility of assessing targetability on the basis of formal membership in non-state armed forces on the assumption that such membership "is rarely formalized through an act of integration other than taking up a certain function for the group; and it is not consistently expressed through uniforms, fixed distinctive signs, or identification cards." (17) The ICRC goes even further by arguing:
In view of the wide variety of cultural, political, and military contexts in which organized armed groups operate, there may be various degrees of affiliation with such groups that do not necessarily amount to "membership" within the meaning of IHL. In one case, affiliation may turn on individual choice, in another on involuntary recruitment, and in yet another on more traditional notions of clan or family. In practice, the informal and clandestine structures of most organized armed groups and the elastic nature of membership render it particularly difficult to distinguish between a non-State party to the conflict and its armed forces. (18) The ICRC's sweeping rejection of targetability on the basis of formal membership in non-state armed forces in all circumstances is actually quite perplexing. There are certainly instances in which non-state armed forces are more organized than state armed forces. (19) Yet, the ICRC is only willing to accept targetability on the basis of membership for the latter, since there are instances in which the former are less organized than state armed forces. To add to the perplexity, the ICRC admits in the context of dissident armed forces that if "they remain organized under the structures of the State armed forces to which they formerly belonged, these structures should continue to determine individual membership in dissident armed forces as well." (20) If there is an exception for such non-state armed forces, why should others be treated differently? (21) Finally, and most importantly, states and scholars alike accept the idea that formal membership in the armed forces of a non-state actor may be established. (22)
Indeed, many states and scholars find the ICRC's analysis in this regard to be neither persuasive nor reflective of customary international law. Rather, they hold the position that formal membership in armed forces is sufficient for determining the status of an individual as a lawful target. (23) At the same time, one may nevertheless wonder whether formal membership fully captures the notion of membership in all instances. In certain cases, including those in which the armed forces have no clear recruitment mechanisms, the "functional" approach might be appropriate; that is, an approach which analyzes the function an individual exercises and, on that basis, determines whether that individual may be considered a member of armed forces and thus may be targetable. (24) Under a functional approach, for example, an individual fighting on behalf of the armed forces may be considered a member thereof even in cases where he or she is not a formal member.
The functional membership theory has in fact been suggested in a number of sources. Indeed, the ICRC proposed a functional membership theory in its ICRC Interpretive Guidance. (25) In a report published in late 2016, the Obama administration presented its position on the subject, recognizing the possibility of both formal and functional membership as alternative bases for targeting an individual. (26) A similar position is found in the United States Department of Defense (DoD) Law of War Manual. (27) Literature has also supported theories of functional membership, with some scholars seeing it as an alternative existing alongside formal membership-based targetability. (28)
Once we recognize the possibility of functional membership, the following question ensues: what amounts to functional membership? The ICRC's answer to this question has garnered significant attention in recent years and triggered much--and sometimes quite heated--discussion. (29) According to the ICRC:
[Membership must depend on whether the continuous function assumed by an individual corresponds to that collectively exercised by the group as a whole, namely the conduct of hostilities on behalf of a non-State party to the conflict. Consequently, under IHL, the decisive criterion for individual membership in an organized armed group is whether a person assumes a continuous function for the group involving his or her direct participation in hostilities (hereafter: "continuous combat function"). (30) This ICRC demand for continuous combat function (CCF) has been criticized and--explicitly and implicitly--rejected by numerous states and scholars. (31) Kenneth Watkin, for example, argues that the ICRC Interpretive Guidance defines "membership" in armed forces too restrictively, and thus limits the cases in which a member of an armed force could be targeted to an unrealistically narrow group of persons. (32) Others note that as a matter of law, just as a member of a state's armed forces who does not ordinarily serve a combat role may be targeted at any time, so may similar members of non-state armed forces. (33) After all, armed forces have, over the course of history, always included members who do not exercise CCF, such as arms deals negotiators, band members, financial managers, quartermasters, liaison personnel, cooks, legal advisers, and so forth.
At the same time, the mere fact an individual is performing a function in the armed forces that is often conducted by a formal member of armed forces does not necessarily suffice for considering that individual a lawful target. For example, in certain armed forces cooking or repair services (e.g., plumbing and electricity) are now provided by external contractors despite being previously provided by members of the armed forces. It seems clear that individuals performing such functions would not be considered members of the armed forces, liable to attack at any time (especially when he or she provides such services to a range of customers). In other words, whether the function is often conducted by formal members in state armed forces is potentially relevant but not necessarily decisive.
In this regard, in the abovementioned Obama administration report, it is stipulated that determining whether a person is functionally a member of armed forces will thus not only include looking to "the extent to which that person performs functions for the benefit of the group that are analogous to those traditionally performed by members of a country's armed forces" but also "whether that...